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Punishment and the Burden of Proof in Criminal Cases: A Modest Proposal

One of the fixtures of American jurisprudence - and a requirement of the due process clause of the fourteenth amendment - is the rule that the trier of fact in a criminal case must find the defendant guilty "beyond a reasonable doubt" in order to convict. A second rule of law is almost as firmly fixed: that the jury should not be informed, prior to its deliberations on guilt or innocence, of the penalties that the defendant may suffer if convicted. This article will examine the rationales of these two legal principles; argue that they are inconsistent with one another; and present a pragmatic approach to making the "reasonable doubt" standard more meaningful through jury instructions, limited argument by counsel concerning possible penalties on conviction, or both.